Legal Briefing

Immigration | 06 July 2017

On Thursday 23 June 2016, the people of the United Kingdom voted for a British exit (Brexit) from the European Union in a historic referendum. Almost exactly one year later, on 26 June 2017, the UK government published its proposals to ‘Safeguard the position of EU citizens living in the UK and UK nationals living in the EU’.

The documents released by the UK government are proposals at this stage, so may become more or less favourable depending on the outcome of negotiations in Brussels with the EU. The policies are issued in the expectation that the EU will offer reciprocal treatment for UK nationals in its member states.

The Proposals

Broadly speaking, the proposals have separate provisions for four main categories of individuals:

Individuals who have been living in the UK continuously for five years or more by the ‘cut-off date’ will be able to stay indefinitely by obtaining ‘settled status’ in line with Indefinite Leave to Remain.

Individuals who arrived in the UK before the ‘cut-off date’ but have been living in the UK for less than five years, can stay in the UK until they reach the five year period and subsequently apply for settled status.

Individuals who arrive after the ‘cut-off date’ will be able to apply for leave to remain in line with the new scheme(s) being introduced for EU nationals. This group of individuals should have no expectation of guaranteed settled status and will need to meet the requirements in place at the time (details of which have not yet been released).

Family dependents who are living with or who join EU citizens before the UK’s exit will also be able to apply for settled status after five years in the UK. In these cases the ‘cut-off date’ won’t apply.

The ‘cut-off date’ has yet to be determined, but will not be earlier than 29 March 2017 (ie when Article 50 was triggered by Theresa May) or later than the UK’s exit from the EU.

It is intended that all qualifying EU citizens will be given a ‘transition period’ giving them adequate time to apply (expected to be up to two years) for their new residence status after the UK’s exit from the EU.

What action should EU nationals take now?

The Home Office guidance states that EU nationals do not need to take any action now. Individuals who currently hold residence documents or permanent residence in the UK will need to make a new application to the Home Office to confirm their new settled status. The Home Office expects the new system to be up and running in 2018.

However, individuals who are eligible and wish to apply for British Citizenship prior to 2018 will still need to apply for permanent residence as the document confirming this is required as part of the Citizenship application.

Potential areas of conflict?

The UK’s offering is vastly different from the EU’s proposals and position. The EU essentially wishes to preserve EU law rights and free movement for all citizens of the EU and UK alike. It is therefore important to consider what unanswered questions arise from the UK proposals and what the potential areas of conflict are:

Automatic rights under EU law
Currently European nationals have an automatic right of residence in the UK under EU law, therefore they do not have to apply for any document confirming their right to live and work in the UK. As EU citizens will not automatically have this right going forward, an application will have to be made under new (as yet unpublished) domestic criteria.

Domestic Law
The UK Government has not provided any detail on the domestic law that would govern EU nationals seeking entry to the UK and remaining after the ‘cut-off date’ – would this be under the current Tier 2 (sponsored worker) immigration category? Will any provision be made for lower skilled workers? There is an option to open Tier 3 of the Points Based System to allow for lower skilled workers to be accommodated under the current rules, however as this route has not previously been open there is no guidance on how this may work in practice. Will Tier 3 be activated?

Transition Period
It is not clear from the proposals how the two year transition period would work to allow individuals to obtain the necessary documentation. How will employers treat EU nationals awaiting documentation and will they still be able to work in the UK? Will current free movement provisions continue for this period, otherwise it would be difficult to distinguish those who entered the UK before the ‘cut-off date’ and those after.

European Court of Justice
The EU’s position is that the European Court of Justice should retain ‘full jurisdiction’ over EU nationals’ rights, in contrast to the UK’s position. This will be a contentious issue in the Brexit negotiations as ‘bringing back control’ of laws was a key tenet of the campaign to leave the EU.

Family Members
At present EU nationals can bring non-EU spouses and family members to the UK more easily than British nationals because of the tough criteria contained within domestic immigration rules, including minimum earnings thresholds. It is unclear whether such preferential arrangements for family members of EU nationals will continue to apply. The EU is unlikely to accept that the requirements of the UK’s immigration rules offer sufficient protections to family members of EU citizens.

Fees
No fees for the new scheme have yet been announced but will be set at a ‘reasonable level’ according to the Home Office. The current fees for a European permanent residence application is £65, whereas for an application under the UK Immigration Rules for the equivalent Indefinite Leave to Remain the fees are £2,297 (for a postal application) rising to £2,887 (using a same day service). There is likely to be a large increase in fees for EU nationals as a result of any new system under domestic UK law.

With Brexit negotiations likely to take the full two years, and divisions already forming within the UK Government as to its approach, such substantive questions means there is unlikely to be any further security for European nationals living in the UK in the near future.